Can the NSA Wiretap in Iraq Without A Warrant?

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Can the NSA Wiretap in Iraq Without A Warrant?

The scary ads and doomsday-tinged political statements from backers of a White House-approved are all rooted on assumptions about secret spy court rulings that decided the government's domestic wiretapping program was illegal.

An attack ad by the supposedly non-partisan Defense of Democracies targeting Democratic lawmakers assumes that the secret court made astonishingly broad rulings last spring – ruling that 30 years of NSA surveillance was illegal – and extrapolate that on Feb 16, "the law that let's intelligence agencies intercept Al Qaeda communications expires."

Despite this existence of secret law, wiretapping backers rely on vague but dire statements from the Director of National Intelligence Michael McConnell. From that, they assume the court said that any communication that enters a U.S. telecom facility – even just briefly – can't be intercepted ANYWHERE without getting a court order, including from a wiretap in Pakistan.

THREAT LEVEL has bet $1000 that the rulings actually said that the government couldn't install wiretaps INSIDE America, even when targeting foreigners calling foreigners, without getting court permission by naming who they want to target and why.

That's the logical assumption, since that's the essential bargain of the Foreign Intelligence Surveillance Act of 1978. Outside the U.S., the spooks can go wild, while inside the U.S., the courts must approve surveillance to prevent a re-occurrence of the Constitutional abuses of the 50s, 60s and 70s.

While the difference may seem to be small, in actuality, its the difference between deciding that nearly everything the NSA has done for the last 30 years outside the U.S. is illegal, or deciding that the president's secret, domestic wiretapping program was illegal.

It's also the difference between saying that the sky is falling when the Protect America Act expired, and saying that there's plenty of time to iron out compromises between the House and Senate bills, without imperiling American lives. That's because if folks like Andrew McCarthy are right, the NSA needs to get individualized court orders for wiretaps on Afghan cell phone networks, instead of being free to make a copy of every phone call.

For its part, the DNI's office seems perfectly happy to have its political backers paint doomsday scenarios in the public's mind based on assumptions, even though they could, with a word, settle the question.

Today, a spokesman for the Director of National Intelligence spokesman Ross Feinstein told THREAT LEVEL bluntly that the court made the big ruling:

"If a communication touches a U.S. wire. you need a court order," Feinstein said. "If it comes through the U.S., you need a court order."

When THREAT LEVEL expressed dismay, Feinstein put the phone on hold and returned shortly, with a different explanation.

"Due to rulings from the FISA court, in a significant number of cases, the government had to get court orders for purely foreign-to-foreign communications that touched American wires," Feinstein said.

That's a very different statement, and is much more in line, with the narrow ruling.

But he declined to say if the FISA court ruled that it now has jurisdiction over what the NSA does outside the United States, which it has never had in 30 years. Outside the United States, the nation's intelligence services are only controlled by Executive Order 12333.

So while the ambiguity remains, arguments that the wiretappers' earphones have gone silently globally are looking even more dubious than they were when THREAT LEVEL issued its $1000 bet.

Defense of Democracies spokesman Brian Wise tells THREAT LEVEL that the non-partisan group believes – and it ads rely on – the big ruling. Specifically, Wise says the group's expert is National Review contributing editor Andrew McCarthy, who graciously explained to THREAT LEVEL earlier this week that the big ruling was at the heart of his wiretapping column from earlier this week, accusing Democrats of "roll[ing] the dice with American national security."

"The ruling is very clear," Wise said. "Any surveillance is considered domestic surveillance it it passes through American infrastructure," adding that would be nearly all wiretapping outside the United States due to the global reach of the nation's telecom infrastructure.

Despite the fact that even government employees are able to take THREAT LEVEL up on the bet, we've yet to have any takers.

THREAT LEVEL extended the offer to the Defense of Democracies' Wise, but he didn't immediately jump for the sure money.